The plaintiff commenced this action, inter alia, to recover the security deposit
alleging, under the fourth cause of action, a violation of General Obligations Law
§ 7-103. The defendants denied the allegations of the complaint and
asserted counterclaims seeking to recover the money due under the lease. The plaintiff
moved for summary judgment on the complaint and the defendants cross-moved to
dismiss the complaint and to recover on their counterclaims. The Supreme Court denied
the motion and cross motion. The plaintiff appeals from so much of the order as denied
that branch of his motion which was for summary judgment on the fourth cause of
action, to recover for violation of General Obligations Law § 7-103.
The Supreme Court should have granted that branch of the plaintiff's motion which
was for summary judgment on the fourth cause of action. In support of his motion, the
plaintiff established his prima facie entitlement to judgment as a matter of law on that
cause of action by [*2]demonstrating that Guzzone failed
to give written notice of the banking institution that held the deposit, in violation of
General Obligations Law § 7-103 (2), permitting the inference that
Guzzone violated General Obligations Law § 7-103 (1) by commingling
security deposit moneys with her own personal funds. In opposition to the motion,
Guzzone failed to rebut this inference (see Paterno v Carroll, 75 AD3d 625 [2010]; Dan Klores
Assoc. v Abramoff, 288 AD2d 121 [2001]; LeRoy v Sayers, 217 AD2d 63,
68-69 [1995]). As a result of such commingling, Guzzone forfeited the right to avail
herself of the deposit for any purpose, and the plaintiff had an immediate right to return
of the funds notwithstanding that JCR may have breached the lease (see Paterno v Carroll, 75 AD3d